Board for Judicial Administration
December 15, 2006
Kilroy Tower, SeaTac

Members Present: Chief Justice Gerry Alexander, Co-chair; Judge Robert McSeveney, Co-chair; Judge Marlin Appelwick; Mr. M. Wayne Blair; Judge Michael Cooper; Judge Richard Fitterer (by conference call); Judge Deborah Fleck; Judge James Hutton; Justice Barbara Madsen; Ms. Jan Michels; Mr. Butch Stussy; and Judge Dennis Sweeney

Guests Present: Ms. Roni Booth, Ms. Pam Daniels, Judge C. Kenneth Grosse (by conference call), Ms. Fawn Opp, and Gail Stone

Staff Present: Ms. Jenni Christopher, Ms. Jude Cryderman, Ms. Beth Flynn, Mr. Doug Haake, Mr. Jeff Hall, Mr. Dirk Marler, Dr. Carl McCurley, Ms. Gloria Hemmen, Ms. Regina McDougall, and Ms. Ann Sweeney

Call to Order

The meeting was called to order by Chief Justice Gerry Alexander.

Minutes

Judge Richard Fitterer requested the following changes to the

November 17, 2006 meeting minutes:

On Page 7 in the first bulleted item under "Courts of Limited Jurisdiction" strike everything and add "The District and Municipal Court Judges’ Association (DMCJA) is concerned that the proposed General Rule (GR) 33, Judicial Performance Evaluations, proposed by the American Judicature Society (AJS) for election evaluations overlaps with and will be confused with proposed GR 34, Judicial Performance Audits, being developed by the Board for Judicial Administration (BJA) Best Practices Committee for financial audits."

On the top of Page 8 under the first bulleted item strike everything and add, "The Washington State Bar Association (WSBA) Judicial Selection Task Force as presently constituted is to focus on the issue of merit selection of judges—they have been advised of the DMCJA position requiring election of all judges."

Under the second bulleted item, strike everything and add, "The DMCJA appealed a position taken by the Interstate Compact for Adult Offender Supervision (ICAOS) that Washington’s (unique) deferred prosecution was a conviction. After two years, the appeal was denied—meaning that the deferred prosecution is a conviction for those defendants wishing to transfer supervision to another state."

Mr. M. Wayne Blair also requested changes to the minutes:

On Page 6, in the second paragraph under "Access to Justice" add "as a representative of the Board for Judicial Administration" after "place."

It was moved and seconded to approve the November 17, 2006 minutes as amended. The motion carried.

Court Security Legislation

Mr. Jeff Hall reported that during the November meeting the Board agreed to go forward in drafting legislation regarding weapons in RCW 9.41.300. The draft legislation:

1) Clarifies that "Nothing in this section shall be construed as limiting the authority of the local judicial authority to further prohibit, without criminal liability, persons from possessing other dangerous objects within those areas where weapons are prohibited."

2) Eliminates the reference to RCW 9.41.250.

3) Adds wording stating "any" instrument or weapon "of the kind usually known as slung shot, sand club, or metal knuckles, or any knife, dagger, dirk, or other bladed instrument that is capable of causing death or bodily injury."

Mr. Hall stated that there is an appellate case regarding bringing a weapon onto school property. Based on that case, he is not sure if this legislation needs to be proposed. The Court of Appeals ruled that the intent provisions of the statute defining weapons was not an element of the charge under the statute prohibiting bringing weapons onto school property. Mr. Hall wants to discuss this case with the Board for Judicial Administration (BJA) Court Security Committee before moving forward with the legislation.

Mr. Hall requested that the Board go forward with this legislation if, after reviewing the appellate opinion with the BJA Court Security Committee, the Committee deems it necessary to propose this legislation.

It was moved by Judge Marlin Appelwick and seconded by Judge Michael Cooper to go forward with this legislation if, after reviewing the appellate opinion with the BJA Court Security Committee, the Committee deems it necessary to propose this legislation. The motion carried.

Superior Court Judge Position - Island and San Juan Counties

Mr. Hall reported that Island and San Juan Counties Superior Court has requested an additional judge position. The Court would like to either add a third judge to the current district or divide the district and create a new judge position for San Juan County. Dr. Carl McCurley provided information about the number of judges currently needed in each county. There is a need for a total of 2.98 judges for the combined judicial district. For Island County alone, there is a need for 2.59 judges and for San Juan County there is a need for 0.76 judicial positions.

It was moved by Judge Deborah Fleck and seconded by Judge Cooper to approve the establishment of a third superior court judge position or, in the alternative, divide the judicial district with one new position created to serve San Juan County with county commissioner approval. The motion carried.

Toll Legislation

Mr. Hall reported that following discussions with Senator-elect Derek Kilmer and Representative Pat Lantz there are two additional elements they want added to the toll violations bill. The first is to allow an individual who has been cited on toll lanes to go to the Department of Transportation and pay the $3 toll and then obtain an administrative dismissal upon payment of a $20 fee to the Court. The second is to add an amount equal to three times the toll violated to the $40 penalty with the $40 retained by Pierce County and additional amount remitted by the Court back to the toll authority. Mr. Hall stated that he had spoken to Judge James Heller and Mr. Chuck Ramey at the Pierce County District Court and they were in agreement that the amendments should be made.

It was moved by Judge Appelwick and seconded by Judge Cooper to make the suggested amendments to the bill and seek introduction of the bill. The motion carried.

Office of Public Guardianship Legislation

Mr. Hall reported that the Washington State Bar Association (WSBA) Board of Governors (BOG) has taken a position to sponsor the Office of Public Guardianship legislation. At the November Board meeting the Board passed a motion urging the WSBA to sponsor the bill. Mr. Hall asked if the Board would now consider taking a formal position in support of the legislation.

It was moved by Judge Fleck and seconded by Judge Cooper that the BJA support the WSBA’s legislation to create an Office of Public Guardianship funded with state general funds. The motion carried.

Legislation for COA Commissioners to Solemnize Marriages

Judge Appelwick requested that the Board support proposed legislation for Court of Appeals Commissioners to have the authority to solemnize marriages.

Judge Fitterer stated the issue has come up at the District and Municipal Court Judges’ Association (DMCJA) level in the past. The DMCJA decided not to pursue legislation to resolve the issue because there needs to be some differentiation between elected judges and appointed commissioners.

It was moved by Judge Appelwick and seconded by Justice Barbara Madsen that the BJA take a position of support on legislation providing authority to Court of Appeals and Supreme Court Commissioners to solemnize marriages. The motion carried.

Public Health Emergency Bench Book

Ms. Ann Sweeney spoke on behalf of Judge Julie Spector. Judge Spector worked with a group from King County to draft the Public Health Emergency Bench Book. The Bench Book is primarily geared toward superior courts and is available on the Washington Courts Web site. Judge Spector has requested that the BJA endorse the Bench Book. A copy of the page listing current Bench Book endorsements was included in the meeting materials.

It was moved by Judge Cooper and seconded by Judge Appelwick that the BJA endorse the Public Health Emergency Bench Book. The motion carried.

JIS Assessment

Judge Fitterer reported that the DMCJA received a letter from Justice Bobbe Bridge requesting comment on a proposed rule draft increasing the JIS assessment on traffic infractions from $12 to $17. Because of the significant policy issues this raises, the DMCJA is requesting that the BJA discuss the issues prior to the DMCJA commenting on the proposed rule.

Judge Grosse, Vice Chair of the JIS Committee, stated that the JIS assessment increase amount was presented to the Supreme Court as part of the JIS budget request and is included in the Supreme Court’s budget. He would appreciate the support of the BJA with regard to this endeavor. Judge Grosse addressed the propriety of using assessments to fund JIS indicating that this has been a substantial portion of JIS funding for close to 30 years. And, as the PSEA has gained popularity for funding, JIS costs have increasingly been pushed toward assessment funding.

The proposed assessment increase will be combined with Certificates of Participation to fund the initial Roadmap effort for a new JIS upgrade and case management system.

Justice Madsen stated that the Supreme Court had an in-depth discussion regarding these issues and approved this funding approach in the budget submitted to the Legislature. She indicated that the Supreme Court discussed the rate of inflation and determined that it was significant that the fee increase reflects an inflationary increase. It was noted that actual inflation would result in an increase to $17.90. The Supreme Court Rules Committee will consider the proposed rule at the March Rules Committee meeting.

Judge Grosse stated that the JISC also views the increase as an inflationary increase.

There was a general consensus among the Board members that the proposed inflationary increase was appropriate and necessary to support the JIS Roadmap effort.

Retirement

Chief Justice Alexander announced that this is Ms. Jude Cryderman’s last BJA meeting. She has staffed the BJA since 1981 and has done the minutes and anything else asked of her with good cheer and efficiency.

Ms. Cryderman stated it has been an honor to work with all of the BJA members.

Salary Commission Report

All of the BJA members should have received the upcoming Salary Commission meeting dates. The meeting dates are also available at www.salaries.wa.gov. The actual time for the judiciary to present salary information will be toward the noon hour on January 9.

ASTAR Resource Judge Program Scholarships

Chief Justice Alexander presented information about the Advanced Science and Technology Adjudication and Resource Center (ASTAR). ASTAR is offering three judicial scholarships to support judicial officers in Washington. ASTAR suggests participation by two trial court and one appellate court judicial officers. ASTAR will be offering training at the University of Washington on June 12-14, 2007, in which the judges will get hands-on, case-related, science and technology judicial education. The objective is to enhance the capacity of the courts with respect to the management of scientific and technological evidence in complex cases, alternative dispute resolution, and jurisdiction leadership, including judicial education.

Judge Fleck inquired whether the course would be of benefit to limited jurisdiction court judges suggesting that if it appears it would not be of interest that two superior court judges attend. Judge Appelwick suggested that it may be more applicable to the work of trial court judges than appellate court judges. Justice Alexander requested that the Court of Appeals and trial court associations discuss the scholarship offers and forward to him the names of interested judges.

Judicial Campaign Contribution and Selection Discussion

Chief Justice Alexander briefly outlined the issues which arose during the last election period indicating there were many groups working on proposals related to judicial elections. Included in the meeting materials was a letter from Mr. Hall to Judges Fitterer and Churchill outlining the history of the Board’s position in support of the election of all judges at all court levels.

Mr. Hall provided an overview of the various proposals as outlined in the materials. Ms. Gail Stone, appearing at the request of Mr. Hall, provided additional detail regarding the Governor’s proposal on public financing of judicial elections.

Ms. Michels stated that the WSBA has taken a position in support of public financing in concept but is reserving the right to review the specifics of individual proposals.

Ms. Stone reported on the work of the WSBA Task Force on Judicial Selection. Several judges serve on the task force and do so in their individual capacity, not representing the interests of any judicial organizations. The focus of the task force is very narrow in scope, solely addressing the issue of whether the WSBA should take a position supporting a particular method of judicial selection.

Ms. Michels stated that the WSBA Board of Governors adopted a general statement in support of any proposals which serve to promote a fair and impartial judiciary.

In addition to the WSBA Task Force, there is a Judicial Election Coalition consisting of the King County Bar Association, trial and defense lawyers, the municipal league, and others.

Mr. Hall stated that people are interested in knowing the Board’s thoughts and positions on the various issues and proposals.

Judge Appelwick stated that being reactive is fine but these issues are going to move so fast that we need to have these discussions at every meeting to continuously reassess our positions on the specifics of the various proposals.

Justice Madsen noted that the one area the judiciary has been involved in is production of the judicial voter’s pamphlet. It is important to have one official publication which describes the qualifications of each judicial candidate. The judiciary should be proactive on this front.

Judge Fleck stated her agreement with everything Judge Appelwick and Justice Madsen said. Judge Fleck expressed concern about the leap to merit selection. Judge Fleck noted that the work of one person, in particular, put together votingforjudges.org and that we haven’t really given the public education piece a full opportunity to see how that education helps address judicial campaign issues. We need to focus on ways to educate the public. Judge Fleck also endorses the idea of an expanded voter’s pamphlet. We should take smaller steps forward before taking the leap to a change that requires a constitutional amendment.

Judge Fleck stated that we could endorse the publication of a voter’s pamphlet for the primary elections. In the past, the voter’s pamphlet has been the most important information used by the public in making their decision in judicial races.

Mr. Wayne Blair noted that these issues are always divisive for the judiciary and there are no easy answers.

Judge Fitterer noted that there is a lack of information available to the public about judges. Seventy percent of judges run unopposed and the people don’t know who they are voting for because information about candidates in uncontested elections is not included in the voter’s pamphlet.

Chief Justice Alexander noted that the judicial voter’s pamphlet is only funded for the general election. Some counties have a voter’s pamphlet in the primaries and some counties provide information about the judicial elections.

Judge Fleck stated that we could provide information about every judge on local court or the state court Web site. Public education of all sorts needs to be focused on before we make a change in judicial selection. At the least, we now have a transparent system. If we have a commission system, the politics will still be going on but it will be behind closed doors and it won’t be transparent to the public.

Judge Fleck stated that perhaps the Board should begin by adopting general principals relating to elected judges the BJA can stand behind and measure specific proposals against.

It was moved by Judge Fleck and seconded by Judge McSeveney that the BJA support measures which promote a fair and impartial judiciary. The motion carried.

It was moved by Judge Fleck and seconded by Judge Cooper that the BJA support measures which further the independence of the third branch of government. The motion carried.

It was moved by Judge Fleck and seconded by Judge Fitterer that the BJA support measures that further public education about the judicial branch of government. The motion carried.

Justice Madsen noted that we need to understand how we can make elections more palatable and more fair.

Judge Fleck noted the concern that more people vote in the general election and that’s where the education needs to take place. Voters still vote in the primary and people who vote in the primary are knowledgeable about what they are voting for. Even if the turnout in the primaries is less than the general elections, it is problematic for judges to run all the way to the general election when they are expected to be sitting on the bench.

It was moved by Judge Sweeney and seconded by Justice Madsen that the BJA acknowledge the fact that judges are popularly elected by constitutional mandate and the BJA endorses measures that promote fair elections. The motion carried.

Pam Daniels noted that some people don’t participate in the primary election because they don’t want to take the time to educate themselves to make the decision when there are multiple candidates on the ballot. Rather, they wait until the general election to get educated about the candidates.

It was moved by Judge Fleck and seconded by Judge Cooper that the BJA support efforts to obtain legislation to require the Secretary of State to publish a primary voter’s pamphlet subject to further consideration and approval by the Executive Committee of the BJA. The motion carried.

It was moved by Jan Michels and seconded by Justice Madsen that the BJA support a website available to the public for judicial election information. The motion carried.

Justice Madsen stated that we are going to be asked about our position on whether all judicial races should go to the general election and suggested that the trial court associations discuss this issue further.

Ms. Michels noted that the WSBA Board of Governors took a position to oppose all judicial elections going to general election in 2005.

Judge Fleck noted that the judiciary will eventually be asked about their position on public financing and merit selection and these should remain on the Board’s agenda for further discussion.

Access to Justice

Mr. Wayne Blair indicated he had no formal report for today’s meeting but would like to take some time at the next meeting to report on the Access to Justice Board’s statewide plan.

Washington State Bar Association

Ms. Michels reported the BOG has voted to continue to co-sponsor part of "The Docket" program on TVW. The WSBA will provide $30,000 in funding and another $30,000 will need to be contributed by others for the program to continue.

Ms. Michels reported that the WSBA’s legislative agenda consists primarily of technical bills on topics such as securities.

The Committee on Public Defense is close to winding up the revisions to the WSBA public defense standards. They will likely include provisions for counsel at arraignment and may also touch upon some issues relative to civil commitments. Ms. Michels noted that the standards currently exist as standards of the WSBA and are not established in statute or court rule.

Other Business

Mr. Hall reported that the January meeting date still has not been set and will coincide with the State of the Judiciary address.

Mr. Hall reported that the current balance of the BJA account is $28,500. He stated that with the change in personnel managing the account due to Ms. Cryderman’s retirement, he requests authorization to expend up to $3,000 for an audit of the account.

It was moved by Justice Madsen and seconded by Judge Cooper to authorize an expenditure of up to $3,000 for an audit of the BJA account. The motion carried.

Mr. Hall reported that he had a discussion with State Bar President Ellen Dial at the BOG meeting regarding funding for "The Docket" program on TVW and suggested that the Board may want to consider providing financial support for the program too. Ms. Stone noted that TVW had just received an award for "The Docket" program and that it is the program on their website that receives the most hits.

It was moved by Justice Madsen and seconded by Judge Fleck that the BJA approve an expenditure of $2,000 to support "The Docket." The motion carried.

Adjournment

There being no other business, the meeting was adjourned.